IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019194 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to honorable.

2.  The applicant states that he was denied leave to go home for family funerals.  His cousin and best friend had died.  Being denied the opportunity to get closure for a family member who had died was an unbelievable hardship.  He was young and took matters into his own hands which he now realizes was a mistake. He went into a deep depression and was afraid to fly for fear of being the next to die. He has been a good citizen and attends church regularly.  He wants an upgrade of his discharge so that he can receive Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Report of Separation from Active Duty), criminal background check, and nine letters of support from friends and ministers.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 17 July 1973, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 71B (Clerk Typist).

3.  On 3 April 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 5 days and for missing movement.  The punishment included reduction to private, pay grade E1.

4.  On 26 April 1974, the applicant was assigned for duty with B Company, 440th Signal Battalion, located in the Federal Republic of Germany.

5.  On 27 November 1975, the applicant was AWOL.  He surrendered and was returned to military control on 15 May 1976.

6.  The applicant's available records do not contain the charge sheets or his discharge packet.  However, his DD Form 214 shows that he was administratively discharged on 21 June 1976, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He completed 2 years,     5 months and 14 days of creditable active duty service and had 175 days of lost time due to AWOL.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  The letters of support provided by the applicant essentially state that he is a faithful, caring man who is trustworthy and dependable.  He is a man of action who is willing to do whatever he can to enhance his work.  He is blessed with a loving family and is committed to his church.

9.  The applicant's criminal background check, dated 26 August 2009 found no records in Orange County, Florida.



10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that because he was denied leave to go home for family funerals and went into a deep depression, his undesirable discharge should be upgraded to honorable.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's desire to obtain VA medical benefits is not justification to upgrade his discharge.

4.  The applicant's lengthy period of AWOL rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _ X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090019194





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ABCMR Record of Proceedings (cont)                                         AR20090019194



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